Sajeev Raj v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ``` BAIL APPL. NO. 212 OF 2023 CRIME NO.2158/2020 OF VELLARADA POLICE STATION, THIRUVANANTHAPURAM ``` ## **`PETITIONER/2nd ACCUSED:`** ``` SAJEEV RAJ AGED 29 YEARS S/O CHRISTUDAS, KARIKKOM SAJEEV HOUSE, KILIYOOR, VELLARADA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695505 ``` ``` BY ADVS. P.ANOOP (MULAVANA) THANIMA S. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV.T.V.NEEMA SR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BANo. 212 of 2023 2 ## **A.BADHARUDEEN, J.** **----------------------------------------------BAIL APPL. No.212 of 2023 ----------------------------------------------Dated this the 6[th] day of March, 2023.** ## **O R D E R** This is an application for regular bail filed by the second accused in Crime No.2158/2020 of the Vellarada Police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. Perused the report and relevant documents, form part of the case diary produced by the learned Public Prosecutor. 4. The prosecution allegation is that at about 13.15hrs on 10.10.2020, 54.548 Kgs of ganja kept in 26 packets were seized by the police from the residence of the first accused at BANo. 212 of 2023 3 Poovankuzhi Colony transported and kept for the purpose of sale jointly by accused Nos.1 to 4. The first, third and fourth accused were arrested on 10.10.2020. The petitioner who is arrayed as second accused was arrested on 09.03.2021. Since commercial quantity of contraband was seized, prosecution alleges commission of offences punishable under Section 20(b) (II)C r/w Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS . Act’ for convenience) 5. The learned counsel for the petitioner pressed for grant of bail to the petitioner pointing out his custody from 09.03.2021 and the progress of the investigation. 6. Whereas the learned Public Prosecutor opposed bail and submitted that in this crime, final report already filed within the statutory period and the petitioner is a person having involvement in another NDPS Crime viz. Crime No.2306/2020 of Vellarada Police Station., where the prosecution alleges commission of offences punishable under Section 20(b)ii(B) r/w BANo. 212 of 2023 4 Section 29 of NDPS Act. The learned Public Prosecutor also submits that since commercial quantity of contraband is involved, grant of bail shall be subject to satisfaction of the twin conditions provided under Section 37 of the NDPS Act. 7. On perusal of the available materials, initially contraband was seized from the house of the first accused and later investigation revealed that accused Nos.1 to 4 jointly transported and possessed the above contraband. On this premise, the present petitioner got arrayed as accused No.2 was also arrested on 09.03.2021. The prosecution records would justify the prosecution case as regards the involvement of the petitioner/2nd accused in this crime. Thus the prosecution case is well made out, prima facie. It is shocking to note that this is the second crime in which the petitioner has involvement under the NDPS Act and the first crime is one involving intermediate quantity of contraband. 8. Insofar as offences involving commercial quantity of contraband under the NDPS Act is concerned, Section 37 interdicts grant of bail, and grant of bail shall be subject to BANo. 212 of 2023 5 satisfaction of the twin conditions provided therein. Section 37 provides as under. “37. Offences to be cognizable and nonbailable.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. BANo. 212 of 2023 6 9. On a perusal of Section 37(1)(a)(i), when the Public Prosecutor opposes bail application of a person involved in a crime, where commercial quantity of the contraband was seized, the Court can grant bail only after satisfying two conditions: viz; (1) There are ‘reasonable grounds’ for believing that the accused is not guilty of such offences and (2) he will not commit any offence while on bail. 10. The Apex Court considered the meaning of ‘reasonable grounds’ in the decision reported in (2007) 7 SCC 798, **Union of India v. Shiv Shankar Kesari** and held that the expression ‘reasonable grounds’ means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 11. It was further held that the Court while considering the application for bail with reference to S.37 of the Act is not BANo. 212 of 2023 7 called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 12. While considering the rider under Section 37 of the NDPS Act, the same principles have been reiterated, in the decisions reported in **Superintendent, Narcotics Central Bureau v. R.Paulsamy** [2000 KHC 1549: AIR 2000 SC 3661: (2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], **Customs, New Delhi v. Ahmadalieva Nodira** [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004 SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302], **Union of India v. Abdulla** [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115: 2005 All LJ 2334], **N.R.Mon v. Md.Nasimuddin** [2008 KHC 6547: 2008(6) SCC 721: 2008(2) BANo. 212 of 2023 8 KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC 2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], **Union of India v. Rattan Malik** [2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri) 831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], **Union of India v. Niyazuddin** [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], **State of Kerala v. Rajesh** [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2) KLT SN1 : ILR 2020(1), Ker.848]. Latest decision on this point is [2023 Cri.LJ 799], **Union of India v. Jitentra Giri** . 13. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act, within the ambit of the Settled law, it has to be understood that two ingredients shall be read conjunctively and not disjunctively. Therefore satisfaction of both conditions are sine qua non for granting bail to an accused who alleged to have been committed the offences under Section 19 or Section 24 or Section 27A and also for the offences involving commercial quantity as provided under Section 37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature BANo. 212 of 2023 9 in cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court could not grant bail without recording satisfaction of the above twin ingredients. 14. On evaluation of the prosecution materials on par with the arguments tendered by the learned counsel for the petitioner and the learned Public Prosecutor, this Court cannot satisfy that there are reasonable grounds for believing that the petitioner is innocent and he will not commit any offence while on bail. Therefore, this application for regular bail at the instance of the petitioner must fail. Hence the petition stands dismissed. **Sd/-** ## **A.BADHARUDEEN, JUDGE.** Mn BANo. 212 of 2023 10 ## **`APPENDIX OF BAIL APPL. 212/2023`** ``` PETITIONER ANNEXURES Annexure1TRUE COPY OF THE ORDER IN BAIL APPL NO. 4345/2021 DATED 26.07.2021 BEFORE THIS HON'BLE COURT ```